Custody of Minor Children after Divorce in the State of Vermont

Abstract
Conflict may seem never ending when two people decide they can no longer live together and want to separate. Children can often be the last ones thought about when a couple is going through a divorce, however, they play a key role in the issues surrounding the divorce and what will happen to them as part of this procedure. The court is ultimately responsible for making sure the children’s best interest is reflected when deciding what happens to them after a divorce. Parents play a key role in this decision making, though if conflict between the parents causes them to fight and not be able to come to an affable arrangement, then the courts must decide for them. This paper explains what the court expects from parents, surrounding divorce and custody issues, how they can best resolve those conflicts, and why it is best to solve those issues in the interest of the children.

Keywords: Custody, physical custody, legal custody, temporary custody, joint custody, alternative dispute resolution, child custody mediation, collaborative law, parenting plan, child support, child custody evaluation, visitation, parental rights and responsibilities, temporary order, final order.
Custody of Minor Children after Divorce in the State of Vermont When parents decide they no longer want to live together, they separate and if married, usually divorce. There can be many reasons for this, however, they all stem from some sort of conflict between the two parents. When separating with children, there are laws parents face when dealing with issues such as where the children will live. Parents must go to court and file paperwork even if they have not decided to divorce. When tensions already run high between parents because of the separation, it can be difficult to agree on such matters where children are concerned. This literature review demonstrates the importance of parents resolving conflict in regards to children and how that can be achieved through the court system if they are unable to do so on their own, by answering the following questions: 1. What happens when people with children decide to separate and/or divorce? 2. What is custody, and what does it mean? 3. What are Vermont’s child custody laws? 4. How can parents come up with an agreement surrounding custody? 5. What do the courts do to decide custody if parents are unable to reach an agreement? 6. How can children benefit from parents resolving conflict surrounding children within a divorce?

What Happens when People decide to Separate or Divorce?
According to Vermont Law Help, (vtlawhelp.org) when two people decide to separate or divorce, and there are minor children involved, they must file paperwork with the court to establish an order containing the legal information about who the child will live with, and who will have legal responsibility for the children. The order will also contain information about when the children will “see” the parent they do not live with and who will pay for the costs associated with the children’s needs. The parents may file this paperwork together if they can agree on all the decisions that need to be made, or the court can decide for the parents if they cannot come to an agreement.
What is Custody and what does it mean?
Custody is said to be “the rights and responsibilities of parents to their minor children when the parents’ divorce or separate and a child is involved,” (childcustodycoach.com). Also known as, Parental Rights and Responsibilities, according to Vermont Law Help (vtlawhelp.org). When looking at the Parental rights and Responsibilities, there are three main parts which consist of physical responsibility (physical custody), legal responsibility (legal custody), and child support, however, there are also a number of different types of custody, and each one describes the primary rules with regard to the children. The first type of custody is called physical custody (physical responsibility). This simply put is, who the child will primarily reside with. There are a few different plans when it comes to this type of custody. Parents, or the court, may decide upon having primary custody, secondary custody, sole custody (full physical custody), or joint physical custody (shared between the two parents). Legal custody (legal responsibility) is the second type, and this defines who will make the decisions with regard to the child’s upbringing and raising. This includes things like, where your child will go to school, the religion your child practices, the doctor your child sees, and if your child can travel outside the state of Vermont. This type of custody is normally shared equally between the two parents, however sometimes can be held solely by one parent. Temporary custody is a type of custody that is an agreement regarding child custody, normally at the beginning of a separation or divorce. This can be an agreement made between the parents or stipulated and ordered by the courts until a final order can be issued. The final type of custody is joint child custody, which simply means an agreement of child custody where both parents retain an equal amount of time spent with the child. Child support is the last main part when determining parental rights and responsibilities. When parents separate, in the eyes of the law, they are both still responsible for the financial well-being of their children. The court must determine how best the parent who does not have custody of the child, can meet this financial support. This is usually done through what is called child support and is usually a monthly amount paid to the custodial parent, (the parent who has physical custody) to be used for the financial care of the children. There is a specific office in the state of Vermont who deals with child support and can answer questions and help determine the monthly amount to be paid.
What are Vermont’s Child Custody Laws?
According to Child Custody Coach, when a court must make the decision as to which parent shall be awarded parental rights and responsibilities, they must “not apply a preference for one parent over the other because of the sex of the child, the sex of a parent or the financial resources of a parent” (childcustodycoach.com). In order for the court to make this decision, there are certain factors that must be looked at in order to look at the best interests of the child, (This will be explained in greater detail later). These factors include the following: * The relationship of the child with each parent and the ability and disposition of each parent to provide the child with love, affection and guidance; * The ability and disposition of each parent to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment; * The ability and disposition of each parent to meet the child’s present and future developmental needs; * The quality of the child’s adjustment to the child’s present housing, school and community and the potential effect of any change; * The ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, including physical contact, except where contact will result in harm to the child or to a parent; * The quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development; * The relationship of the child with any other person who may significantly affect the child; * The ability and disposition of the parents to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided; and * Evidence of abuse, as defined in section 1101 of this title, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.
[Based on Vermont Statues – Title 15 – Chapter 11: Subchapter 3 – Section 665] (childcustodycoach.com).

How Can Parents Come Up With an Agreement Surrounding Custody? When a separation has occurred, the courts encourage parents to work out an agreement about children to the best of their abilities. The court would much rather the parents devise a plan on custody and visitation, rather than having to do it themselves. They feel parents know the children best and ultimately they have the most input on what is in the best interest of the child. Most times during a separation or divorce, there are many conflicts between the parents and it can be difficult for them to work out an agreement on their own. So how can parents come up with an agreement without the need for many court hearings? The best case scenario would be for parents to try to put aside their differences and consider what is best for the child, however, views may be different and this might be impossible to do. The next option could be Mediation. “Mediation is a process in which separated parents define their differences, explore their interests, evaluate possible solutions, and create written agreements” (pamphlet 16&17, August 2007). In this process, you sit down with a neutral party who does not decide who is right or wrong, rather, they help parties to communicate. If this option does not work, parents may opt to hire lawyers. While this may be helpful in negotiating terms of an agreement between the parties, it can be very costly and if one party has a lawyer and the other does not this could create more conflict. If an agreement still cannot be reached then a court hearing will be scheduled.
What do the courts do to decide custody if parents are unable to reach an agreement?
If parents are unable to reach an agreement surrounding custody and visitation of the children, then the courts must decide for them. In this situation, as stated from Vermont law help, “the court may order you to take part in a family court program.” These programs might be: mediation, home study, parent coordination, children’s panel, visitation masters, or forensic evaluation. The judge may also order something called a custody evaluation. All of these programs take time so complete, so the judge will put a temporary order in place while these things are taking place. Most of these programs cost money, which the parents must pay for if they are needed. An example of what one of these programs involves is the custody evaluation, in which the parents pay someone (a mental health professional), between $1,000 - $2,500 to have them review the family situations. The evaluator then makes recommendations to the judge about what custody schedules would be in the best interest of the child. To accomplish this, “…evaluators interview both spouses as many as three times and interview each child once or twice. The evaluator spends time with each child with each parent, to observe parental interactions and gathers information from teachers or caregivers, doctors, therapists, and other witnesses, and court records” (divorcesource.com). The courts will set a hearing date in which both parties must attend. During this hearing, the judge looks at many factors within the “best interests of the child” standards, which were mentioned earlier. The judge will gather evidence, which could consist of something as simple as testimony given by either party, or it can be more in depth and include such things as: photographs, medical reports, school reports, testimony from other caregivers of the children, or any other kinds of evidence that may help the judge decide the case. Once the judge gathers all the evidence, he will make a decision about custody and visitation for the child based upon his best educated opinion as to who can care for the child. This will become an order which both parties must follow. How can children benefit from parents resolving conflict surrounding children within a divorce?
Children often have a difficult time when parents decide to end a relationship. When parents separate, children can struggle with issues surrounding custody and visitation. According to the Journal of Family Studies, “Many studies suggest that parental conflict is more strongly associated with children’s emotional wellbeing than family structure (Amato & Keith, 1991; Fischer, 2004; Hanson, Mclanahan, & Thomson, 1996; Kalter, Kloner, Schreier, & Okla, 1989; Kuehl, 1993). Ongoing conflict, blocked communication and power imbalances between parents are problematic for child and family functioning. Kelly (1993) states that parental conflict has a direct effect on children via socialization processes and an indirect effect via diminished parenting and reduced responsiveness of parents” (p.141). This passage directly indicates the reason why parents would benefit from resolving conflict for the children. It is often difficult for children to adjust to so many changes. If children also feel they are “in the middle” because of parents conflicts, this can lead to emotional issues for the child. In the American Journal of Family Therapy it states, “…children need both parents to be physically and emotionally attuned, involved, and responsive in their lives, and the removal of a primary parent threatens their physical and emotional security” (p.33 & 34). This article goes on to explain how harmful it can be for children to be exposed to ongoing and unresolved conflict between parents. This can lead to long – term physical and mental health problems for children. In the same article, it goes on to talk about research that was done with children specifically by asking the children directly what their preferences and views were on divorce situations. The research concluded that, “seventy percent of children of divorce believe that equal amounts of time with each parent is the best living arrangement for children…” (p. 39). In order to accomplish this, parents must be willing to resolve conflict surrounding the children to do what is in the best interest of their children. If parents can work together to resolve these conflicts, children can grow to be physically and emotionally healthier adults.

References
Child Custody and Visitation (Parental Rights and Responsibilities). (n.d.). Retrieved April 15, 2016, from http://www.vtlawhelp.org/child-custody-and-visitation-parental-rights-and-responsibilities
Family Division. (n.d.). Retrieved April 15, 2016, from https://www.vermontjudiciary.org/GTC/Family/
Kruk, E. (2012). Arguments for an Equal Parental Responsibility Presumption in Contested Child Custody. American Journal Of Family Therapy, 40(1), 33-55 23p. doi:10.1080/01926187.2011.575344
Vanassche, S., Sodermans, A. K., Matthijs, K., & Swicegood, G. (2013). Commuting between two parental households: The association between joint physical custody and adolescent wellbeing following divorce. Journal Of Family Studies, 19(2), 139-158. doi:10.5172/jfs.2013.19.2.139
Vermont Child Custody Laws. (n.d.). Retrieved April 15, 2016, from http://www.childcustodycoach.com/vermont/
Vermont Divorce Source: Vermont Divorce Laws. (n.d.). Retrieved April 15, 2016, from
http://www.divorcesource.com/ds/vermont/vermont-divorce-laws-719.shtml